Opposition Brief — Eppinga v. Edgar

CLERK

No. 86-45 SEP 26 tone

Is Tue

Supreme Court of the Gnited States

Octoser Term, 1986

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. RONALD EPPINGA,

Petitioner,

Vv.

JIM EDGAR, SECRETARY OF STATE,

STATE OF ILLINOIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3000

Attorneys for Respondent

Patricia Rosen *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 33387—55—9-26-86)

eo

|

——<<

i

QUESTIONS PRESENTED

Whether Certiorari should be denied because this case

has become moot and the chance that plaintiff will

again be subjected to the deprivation of his driving

privileges under this law is speculative and remote.

Whether the summary revocation of plaintiff's driv-

ing privileges was justified and did not deprive plain-

tiff of due process of law.

il

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED .................. i

TABLE OF AUTHORITIES ...............-. ili

ARGUMENT:

L.

CERTIORARI SHOULD BE DENIED BECAUSE

THE ONLY ISSUE RAISED BY THE PLAIN-

TIFF HAS BECOME MOOT DURING THE

PENDENCY OF THE LITIGATION AND THE

CHANCE THAT PLAINTIFF WILL AGAIN BE

SUBJECTED TO THE DEPRIVATION OF HIS

DRIVING PRIVILEGES WITHOUT A PRIOR

HEARING IS SPECULATIVE AND REMOTE . 1

II.

THE SUMMARY REVOCATION OF PLAIN-

TIFF’S DRIVING PRIVILEGES WAS JUSTI-

FIED ON THE BASIS OF THE EVIDENCE

PRESENTED AND THAT REVOCATION DID

NOT DEPRIVE PLAINTIFF OF DUE PROCESS

UF BW shevesnccncevundeesssaueeeey

CARMEN. oct cx> sdeunvecsucenseeMeuaaee 10

APPENDIX—Certified Copy of Petitioner’s Driv-

a PP ere yee 11

or)

ili

TABLE OF AUTHORITIES

FEDERAL CASES: PAGE(S)

Armstong v. Manzo, 380 U.S. 545 (1965) ...... 6

Arnett v. Kennedy, 416 U.S. 134 (1974) ....... 7

Bell v. Burson, 402 U.S. 535 (1971) .......... 6

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) . 7

DeFunis v. Odegaard, 416 U.S. 312 (1974) .... 2

Dixon v. Love, 431 U.S. 105 (1977) ........... 6,7

Enrico’s Inc. v. Rice, 730 F.2d 1250 (9th Cir. 1984) . 5

Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975) .. 7

Hodel v. Virginia Surface Mining & Reclamation

i Ae GD CAUUEED oo cccccccccveces

7)

Mackey v. Montrym, 443 U.S. 1 (1979) ....... 6, 8,9

Mathews v. Eldridge, 424 U.S. 319 (1976) ..... 8

Mills v. Green, 159 U.S. 651 (1895) ........... 2

Morrissey v. Brewer, 408 U.S. 471 (1972) ..... 7

Oil Workers Union v. Missouri, 361 U.S. 363

Ne teks eaeees 5

Powell v. McCormack, 395 U.S. 486 (1969) .... 2

Simon v. Eastern Ky. Welfare Rights Organiza-

i Ci ve ckeserccesesecses

Sosna v. Iowa, 419 U.S. 147 (1975) ...........

Super Tire Engineering Co. v. McCorkle, 416 U.S.

risk see eb ns bites nce s >>

Weinstein v. Bradford, 423 U.S. 147 (1975) ....

or

w

iv

Williams v. Alioto, 549 F.2d 136 (9th Cir. 1977) .

Wolff v. McDonnell, 418 U.S. 539 (1974)

STATE STATUTES:

Ill. Rev. Stat. 1983, ch. 95%, 4 6-205

rTeote = ee

Ill. Rev. Stat. 1983, ch. 9542, ¢ 6-206

STATE REGULATIONS:

9? Ill. Admin. Code, § 1940.35

In THE

Supreme Court of the Anited States

Octoser Term, 1986

PEOPLE OF THE STATE OF ILLINOIS,

ex rel. RONALD EPPINGA,

Petitioner,

V.

JIM EDGAR, SECRETARY OF STATE,

STATE OF ILLINOIS,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

ARGUMENT

I.

CERTIORARI SHOULD BE DENIED BECAUSE THE

ONLY ISSUE RAISED BY THE PLAINTIFF HAS BE-

COME MOOT DURING THE PENDENCY OF THE LITI-

GATION AND THE CHANCE THAT PLAINTIFF WILL

AGAIN BE SUBJECTED TO THE DEPRIVATION OF HIS

DRIVING PRIVILEGES WITHOUT A PRIOR HEARING

IS SPECULATIVE AND REMOTE.

On March 1, 1985 the plaintiff, Ronald Eppinga, filed

a complaint containing counts for mandamus, declaratory

judgment, and quo warranto. (C. 2-14). The essence of his

i

complaint was that he sought judicial relief because the

defendant, the Illinois Secretary of State, had improperly

and unconstitutionally revoked his driver’s license with-

out a prior hearing under Ill. Rev. Stat. 1983, ch. 95%,

€ 6-206. Plaintiff sought a declaration that this law was

unconstitutional and the restoration of his driving privi-

leges. While there unquestionably was a live controversy

in this case at the outset of this litigation, this action has

become moot during the pendency of the appeal, so cer-

tiorari should be denied.

It is well settled that the duty of a federal court “‘is

to decide actual controversies by a judgment which can

be carried into effect, and not to give opinions upon moot

questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue

in the case before it.”’ Mills v. Green, 159 U.S. 651, 653

(1895). The inability of the federal courts to review cases

which have become moot during the pendency of the liti-

gation derives from the requirement of Article III of the

Constitution under which the exercise of judicial power

depends upon the existence of a case or controversy.

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). To satisfy

the case-or-controversy requirement, a litigant must have

suffered some actual injury that can be redressed by a

favorable judicial decision. Simon v. Eastern Kentucky

Welfare Rights Org., 426 U.S. 26, 38 (1976). Thus, a case

will become moot whenever the issues presented are no

longer live and the parties therefore lack ‘‘a legally cog-

nizable interest in the outcome.”’ Powell v. McCormack,

395 U.S. 486, 496 (1969).

In the instant case, plaintiff's constitutional challenge

to Illinois’ summary suspension procedure has become

moot during the pendency of this litigation because plain-

tiffs driving privileges have been restored to him. The

administrative regulation governing summary suspensions

= a

under §§ 6-205 and 6-206 of the Illinois Vehicle Code, IIl.

Rev. Stat. 1988, ch. 95%, 44 6-205, 6-206, provides for the

automatic restoration of driving privileges to any indi-

vidual who was previously suspended if the charges against

that individual are disposed of in any manner other than

conviction of the offense with which he was charged. See

92 Ill. Admin. Code § 1040.35(6), (7), and (8). In the in-

stant case, this Court can take judicial notice of the fact

that the charges pending against the plaintiff were dis-

posed of without conviction, so his driving privileges were

restored to him on April 17, 1985.* A certified copy of

plaintiff's driving record is reproduced herein in the Ap-

pendix at A-1 to A-5. Since the court can no longer grant

plaintiff any meaningful relief with respect to his claim,

that claim is now moot and this appeal should not be

heard by this Court, unless this case falls within one of

the recognized exceptions to mootness.

In its decision in Weinstein v. Bradford, 423 U.S. 147

(1975), this Court explained its earlier treatment of the

doctrine of ‘‘capable of repetition, yet evading review”

in Sosna v. Iowa, 419 U.S. 147 (1975), by outlining the

criteria necessary to apply this doctrine in suits which are

not class actions:

Sosna decided that in the absence of a class action,

the “capable of repetition, yet evading review”’ doc-

trine was limited to the situation where two elements

combined: (1) the challenged action was in its dura-

tion too short to be fully litigated prior to its cessa-

tion or expiration, and (2) there was a reasonable ex-

pectation that the same complaining party would be

subjected to the same action again. * * *

423 U.S. at 149. Both of these criteria must be satisfied

for this doctrine to apply, and the second criterion plain-

ly is not satisfied in this case.

* This license is valid until October 9, 1987.

=

Summary suspensions under §§ 6-205 and 6-206 of the

Illinois Vehicle Code are only entered when the follow-

ing four conditions are met.

First, an Illinois driver must be charged with one or

more of the following offenses which are awaiting court

disposition:

A) driving under the influence of alcohol or drugs;

B) manslaughter or reckless homicide resulting from

the operation of a motor vehicle;

C) leaving the scene of a traffic accident involving

death or serious bodily injury; or

D) drag racing.

Second, those offenses must have resulted in serious

bodily injury or death to other drivers. Third, the State’s

Attorney must decide to recommend that the driver’s

license be summarily suspended and must transmit a

record of the offense to the Secretary of State. Finally,

the Secretary of State must review these records and

decide that there is “sufficient evidence” that the driver

has committed the offense in question. Only when all

these conditions have been satisfied will the summary sus-

pension be entered.

Under these circumstances, it cannot be said that the

chance of the repetition of such a deprivation to plaintiff

in this case is ‘of some certainty, and not remote or

speculative.”” Williams v. Alioto, 549 F.2d 136, 142, 144

(9th Cir. 1977). Plaintiff would once again have to be in-

volved in an accident involving death or serious bodily

injury in which he was charged with one or more of the

above offenses as a necessary precondition to such a depri-

vation. Additionally, the State’s Attorney would have to

foreward the record of his accident to the Secretary of

State, who would then have to exercise his discretion in

favor of suspension.

=

Thus, this case does not come within the exception to

mootness for cases which are “capable of repetition, yet

evading review” because the likelihood of recurrence to

this plaintiff is not great. To satisfy the Article III case-

or-controversy requirement, a litigant must have suffered

some actual injury which can be redressed by a favor-

able judicial decision. Where events have occurred which

prevent the court from granting meaningful relief to the

plaintiff, then the court should dismiss the plaintiff's ap-

peal as moot. Enrico’s, Inc. v. Rice, 730 F.2d 1250, 1254

(9th Cir. 1984). Thus, the central question in such a case

is whether there have been changes in the circumstances

which prevailed at the beginning of the litigation which

have removed any possibility for meaningful judicial relief.

As this Court found in Super Tire Engineering Co. v.

McCorkle, 416 U.S. 115 (1973),

[t]he question [is] thus posed in a situation where the

threat of governmental acticn [is] two steps removed

from reality. This [makes] the recurrence . . . so re-

mote and speculative that there [is] no tangible pre}-

udice to the existing interests of the parties and,

therefore, there [is] a ‘want of subject matter’ on

which any judgment . . . could operate.

416 U.S. at 123, quoting Oil Workers Union v. Missounr,

361 U.S. 363, 371 (1960). The same conclusion is mandated

here.

Plaintiff's summary suspension has been lifted and his

driver’s license has been returned to him, so this case

has become moot. Since the possibility of recurrence of

the same deprivation to him is speculative at best, there

is no longer a live controversy to adjudicate and plain-

tiff’s appeal must be rejected. For this reason, plaintiff's

petition for a writ of certiorari must be denied.

- =

THE SUMMARY REVOCATION OF PLAINTIFF'S DRIV-

ING PRIVILEGES WAS JUSTIFIED ON THE BASIS OF

THE EVIDENCE PRESENTED AND THAT REVOCATION

DID NOT DEPRIVE PLAINTIFF OF DUE PROCESS OF

LAW.

The courts have developed a two-part analysis to be ap-

plied in order to determine whether a person has been

denied due process of law in contravention of the require-

ments of the fourteenth amendment. U.S. Const., Amend.

XIV. The first inquiry is whether the individual has been

deprived of a constitutionally-protected interest. If not,

then the courts will inquire no further; if so, then the in-

quiry proceeds to the second stage, where the court deter-

mines what process is due under the circumstances.

In the instant case, the first inquiry must be answered

in the affirmative, since it is well settled that a driver’s

license may not be suspended or revoked without due

process. Mackey v. Montrym, 443 U.S. 1, 10 (1979); Dixon

v. Love, 431 U.S. 105, 112 (1977); Bell v. Burson, 402 US.

535, 539 (1971). Therefore, the focus of the inquiry in this

case must be in ascertaining what process is due when

the state seeks to revoke a driver’s license in the circum-

stances presented here.

Under the due process clause, the general rule is that

befere an individual is finally deprived of a significant

property interest, he must be afforded an opportunity for

a hearing, Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974),

although the nature, extent, and formality of the proceed-

ing may vary widely. The fundamental requirement of due

process is the opportunity to be heard “at a meaningful

time and in a meaningful manner.” Armstrong v. Manzo,

380 U.S. 545, 552 (1965). In most cases, due process will

require that some type of hearing be provided prior to

the deprivation of the constitutionally-protected interest.

=

However, a pre-termination hearing need not be held

in every case. “(Djue process is flexible and calls for such

procedural protections as the particular situation demands.”’

Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Thus, the

required degree of procedural safeguards applicable “varies

directly with the importance of the private interest af-

fected and the need for and usefulness of the particular

safeguard in the given circumstances. . . .” Frost v. Wein-

berger, 515 F.2d 57, 66 (2nd Cir. 1975), citing Arnett v.

Kennedy, 416 U.S. 134 (1974). In certain special circum-

stances, this Court has found that immediate seizure of

a property interest is permissible where there is an im-

portant governmental or general public interest to be

served by summary action. See Dizon v. Love, supra;

Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961).

This Court traditionally has recognized certain govern-

mental interests which justify summary action, including:

protecting national security during wartime; protecting the

federal government’s revenues; protecting the public from

economic injury; and protecting the public from unsafe

food or drugs. See, generally Freedman, “Summary Ac-

tion by Administrative Agencies,” 40 Univ. of Chicago

Law Rev. 1 (1972) (“Freedman’’).

Where there is a very special need for prompt action,

a state administrative agency should be able to take tem-

porary measures (pending a prompt hearing)* to remove

the license of an individual who poses a serious threat

to public health or safety. Freedman at 3. Accordingly,

the absence of a pre-termination hearing in § 6-206 of the

Vehicle Code does not demonstrate a constitutional de-

* The necessity for a prompt post-suspension hearing is not dis-

— because the availability of such a hearing is not contested

in this case.

oo

ficiency since the government’s interest justifies summary

administrative action.

A determination of what process is due to drivers af-

fected by this law (i.e. drivers who are facing revocation

of their licenses because they have been involved in ac-

cidents causing serious bodily injury or death and who

are, as a result, charged with serious motor vehicle of.-

fenses) requires an analysis of both the governmental and

private interests which are affected. In Mathews v. Eldridge,

424 U.S. 319 (1976), this Court explained that the identi-

fication of the specific dictates of procedural due process

requires the consideration of three distinct factors:

First, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Gov-

ernment’s interest, including the function involved

and the fiscal and administrative burdens that the

— or substitute procedural requirement would

entail.

424 U.S. at 335. See also Mackey v. Montrym, 443 U.S.

1 (1979).

Montrym involved a class action challenge to the Massa-

chusetts implied consent system, which authorized revoca-

tion of drivers’ licenses without a prior hearing. The

Supreme Court examined the Massachusetts implied con-

sent system under the three-prong due process analysis

used in Eldridge and concluded that “the compelling in-

terest in nighway safety justifies the Commonwealth in

making summary suspension effective pending the out-

come of the prompt postsuspension hearing available.” 443

U.S. at 19. The same conclusion is warranted in the in-

stant case.

-

Both the private interest involved and the risk of error

involved in the summary procedures utilized in this case

are similar to those discussed by this Court in Montrym.

As in that case, this action involves the loss of driving

privileges, and the summary action in both cases is prem-

ised upon police reports prepared by disinterested officers,

decreasing the risk of an erroneous deprivation. 443 U.S.

at 14. Additionally, in this case the police reports have

also been reviewed by the State’s Attorney and the Sec-

retary of State before a decision is made to effect a sum-

mary suspension. Thus, this procedure entails additional

safeguards decreasing the risk of an error.

With respect to certain serious violations of the Motor

Vehicle Code, the Illinois legislature has authorized sum-

mary action to protect the public in two ways—summary

license revocation acts as a deterrent to future violations

and it also protects the public at the present time by

speedily removing dangerous drivers from the highways.

See Hodel v. Virginia Surface Mining & Reclamation

Ass’n., 452 U.S. 264, 300 (1981). These are important gov-

ernmental interests which justify acting summarily to re-

move the licenses of drivers who pose a serious threat

to public health and safety. Thus, the Illinois Supreme

Court correctly found that the Illinois law comported with

principles of due process and further appellate review is

unwarranted.

CONCLUSION

For the reasons stated above, the Respondent respect-

fully suggests that this Petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

NEIL F. HARTIGAN

Attorney General, State of Illinois

ROMA JONES STEWART

Solicitor General, State of Illinois

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3000

Attorneys for Respondent

PaTRICIA ROSEN *

Assistant Attorney General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-2570

Of Counsel * Counsel of Record

APPENDIX

To al to whom these Lresents: Spill Come Greeting.

2 : _ ora —e ;

Rd jen Cuygar Seretary f Itate of he tate of Mins. Le hereby cert{y hat to

the best uf muy hnowledge and belief after a careful search of muy recoras. the uformation

“ s , ’ 4 sate - ia ’ — i . ° 7 -

attached hereto w& a (rue and accurate Oey OS pertinent documents from Ye arwers livtsse

Sule of he Sutin ‘vanrntifiud Aheresr, and J Cenfy at all statutory notes reyuured awa

resiil? Ca wu Bur contr action taken fase been PPCYE JRA ——_—__—_— ——

Fre orwgunais If attahed perunent drauments are nour on _ fie and a mutter Sf

record un this ge

7. — C vf/isz vad = ‘ 7 a

Tn aS CSLUTUS MS Wf hereof, DT hereto itt Wl hurd and cause to be aired Ye

Sreat Seal of the Jiate of Hino Ame at the City of

° . 7 7

Sarengpieed Sus ASHE diy of ea

/

CY ww fs

20 96 * OSLO of Lule

A-2

EPPINGA RONALD W E152-7394-6288

10-09-46 M 09-18-86

PURSUANT TO THE PROVISIONS OF THE ILLINOIS VEHICLE CODES THE FOLLOWING INFORMATION

1S FURNISHED FROM THE DRIVERS LICENSE FILE OF THE PERSON IDENTIFIED ABOVE

RONALD W. EPPINGA E152-7394-6288

376 N. WEST AVE

ELMHURST 60126 a Fas Ye

10 09 46

SEX] _HEIGHi VE lf HAIR oT EVES Tyre t ISSUE DATE CLASS | HESTRICTICN EXPIRA ON CATE]

M| 6 00} 190; BRN | BRN 1 | 09 25 84! A *} 0-0-0; 10 09] 87

i T . aia

Tye i DATE OF DATE OF | DESCRIPTION ACCIDENT OF | “ana i

ACTION! ARREST ACTION Or ACTION | DOCKET NWO j ACTION EFFECT

f

j

4

qT |

ND CONVICTIONS ON RECORD.

| **END OF| RECORD**

|

|

| :

j

| | | | : |

| | !

|

|

‘ '

i

i

'

in Sie

EC @/ary O tale

(SEE FEVERSE © GR EAYLSNATION ©} IOLS ANU COLUMN HEADINGS

COURT INFORMATION ONLY E152-7394-6288

10-09-46 M 09-18-86

PURSUANT TO THE PROVISIONS OF THE ILLINOIS VEHICLE CODES THE FOLLOWING INFORMATION

IS FURNISHED FROM THE DRIVERS LICENSE FILE OF THE PERSON IDENTIFIED ABOVE

RONALD W. EPPINGA E152-7394-6288

376 N. WEST AVE

ELMHURST 60126 Cer

| |10:09 4

SEX HEIGHT WEIGHIT HAIR EYES TYPE 1Sut DATE CLASS RESTRICTION EXPIRATION DATE

M|6 00!190| BRN | BRN 1 |09 25 84/a *!0-0-0!10 09/8

1 ,

| TERMINATION STOF

:

TYPE T Cc ENT OR

sction) ARREST. | “ACTION | “OPACTION. — | DOCKET NO ACTION —|EFFEC

55 [05 12 86| 6 206 a2 COOK-4TH 11-504

**END|OF RECORD**

, |

, C.. € loa.

Secretary of State

(SEE REVERSE FOR EXPLANATION OF CODES AND COLUMN HEADINGS)

A-4

Sd ess 2 sot OFFICE OF THE SECRETARY OF STATE

geese Sp i “ed. STATE OF MLNS .)° 2 2c: = SPRINGFIELD ;

Ppt ae A Ee 7a RESCIND ORDER

SUSPENSION .-

04-02-65. -

6-206CAI17. ~

- €152-7394-6288

wg WS Epping. “A

Saree at $303 DANBY Sit 2 2

al oy > a3.

pperie ring roy "ager F soporte tele Sepa Ss Re a ees

i - 7 et _—-_ ha, Paras

aeant se . > pee ey” =

oe

> s:

£.-9

¥t-

i LS . - ri ej ‘S

Tr HERE CREED fat rst w ry Ee 08) of Bre Yn Co ra

indesied above was menoved bum you Sag top and RESCINDED on = 2O6-17=85, por sie

hha a $4: St SOOT OI RS ret PE Sor Fim & LS ae ee ae ae vs »

= wks oe a ~

IRE RE PE See re Be rae: aS

neve Ede ee LI I 4

eC .

“.° - ~~ -- _- —

ef ta ole ™. o's ° 9 - 7~ ”. ‘ ~~ , - - —

as Fee

pm, Sides

a Pee a

pte on

: ey

4 a - fm -

fas pe NEN

mi a . ° " A

7 6 ; ’

78, "Se o %

-~ 4 a s ~ 6°

<a nh 2 ii

Ae, a ty :

y, 7 > eo.

‘ “: r. . ,e

2 2 s

\ ss s

ae r

Pe PGAK aL

italia OPRIVER SERVICES CEPARTMENT FILE

= Joseph P. Rocstord, Director

—" Onver Sennces Deparment

A-5

Order entered on date indicated on face.

“Order filed in the Driver Services Department of the Office of the Secretary

of State and the Notice of Rescission mailed to the person named herein.